Krystal Continued: Scalia’s Supreme Court

As we all await for the Supreme Court to hand down big decisions this month, author and professor Bruce Allen Murphy took a closer look at one justice who has sat at the forefront of the High Court’s decisions for the past 28 years: Justice Antonin Scalia, the longest-serving justice currently serving on the Supreme Court.

While Justice Scalia is known for his blunt reputation, Murphy says his faith is at the heart of how he approaches the decisions he makes while on the bench. Are his decisions driven by political inhibition or by his faith? Watch to learn what Murphy had to say when he sat down with Cycle co-host Krystal Ball.

Krystal: Scalia is a fascinating man but what inspired you to write about him? Do you feel like you’ve lived with him for the past couple of years?

Bruce Allen Murphy: Absolutely. You do live with the subjects of your biography. This is my fourth judicial biography. My last one was on William O’Douglas, who was the most brilliant, most controversial justice of the 1960’s and 1970’s. So I spent 15 years with him and wanted to find someone on the modern court who would allow me to complete my journey of the 20th and 21st centuries who would be as interesting and controversial as Douglas was and Scalia was the perfect choice.

Krystal: How did he justify his decision in Bush V. Gore?

Bruce Allen Murphy: Bush V. Gore his argument was you have to protect the sanctity of the presidential vote and that it’s left to Congress to determine exactly how to assess the results in Florida. Had they followed federal law what would have happened is there would have been a split in the vote by Congress, and the governor of the state in dispute, which would have been Jeb Bush would have picked the President of the United States. But in this case what the justices were doing was that they were arguing that there were different standards for assessing which was a good vote and which was a bad vote in Florida and they varied according to counties. So under equal protection you can’t allow that to happen, the difficulty there is you have a conservative state’s rights oriented court that was not deciding for the state, you had a court that does not use equal protection in election cases and wasn’t using equal protection here. And then the court said this decision is only good for this one case; don’t be citing it in future cases-it’s just not done.

Krystal: You’ve mentioned in a lot of ways Justice Scalia is the grandfather of the Tea Party ideology-can you talk about that?

Bruce Allen Murphy: His whole theory is states rights and the case that I would cite here, and this is a fellow who appeared at seminar that was backed by the Koch brothers dealing with campaign finance and campaign strategy and it’s a fellow who gave a speech at the invitation of Tea Party head Michelle Bachman before Congress. And he gave a speech about the separation of powers in 2010. But this fellow who believes in states rights and believes in the 10th Amendment, dealt with the immigration act in Arizona that was used by Jan Brewer and the Arizona legislature to try and implement their own immigration policy to keep people from coming up from Central America and Mexico when there was no immigration policy nationally. Scalia when he announced his decision in the bank statement was actually criticizing a press conference given by Barak Obama, dealing with trying to open up the immigration issue for younger undocumented people in this country and when that happened Dahlia Lithwick of slate.com said “it’s the first origninalist deconstruction of a press conference that I’ve ever seen.” It’s an amazing statement but you have a very political approach that the Tea Party would have liked because he was arguing a sort of nullification era-Articles of Confederation version of state power that states should actually be the equal of the national government if not having their own foreign policy.

Krystal: Scalia has been incredibly influential on and off the court, what do you think his legacy will ultimately be?

Bruce Allen Murphy: It’s a very good question and I think his legacy will be two parts. One part indeed that he came to was deciding cases based on congressional intent. They would look at committee hearings, they would look at the transcripts on the debates in Congress and they would try to discern what did Congress mean by these words? Scalia made sure that stopped. He replaced it with his theory of Original theory or Orgiinalism, by which he has people looking at the history of these laws, history of the public meaning of the Constitution and the Bill of Rights at the time of the ratification of the Bill of Rights. So his legacy is now everybody has to at least recognize the Originalism argument-even liberals. You will see David Sutter was answering his argument, John Paul Stevens towards the end of his career was making long arguments on Originalism in the Citizens United case and the McDonalds case, Stephen Breyer does Original analysis that is a very positive legacy for Scalia combined with his brilliant opinions and very provocative dissents however as part of his personality as part of the kinds of things he’s done off the court-he’s made the court more partisan, he’s lowered the standard of ethics for extra judicial activity, he’s made the court more of partisan target, and you look at their public support they are at historic lows. They are down to 46-44 percent, for an institution that should be up around the 60 percent popularity. It’s a court that I think may be on the precipice of making a mistake, and really the court paying a price for it. So that’s the negative part of the legacy, but he’s a great justice, and will be remembered many decades beyond this.